Prickly Probates Series – Lost Wills

This is the second installment in our Prickly Probates series and in this article we look at the issues that arise when a will is lost and the options available to apply for probate nonetheless.

There are many different ways that an original will can be lost:

the person who wrote the will can hold the original will and lose it themselves;
sometimes when the person who wrote the will is holding the original and their living accommodation becomes disorganised before they die, the original will can be lost simply because the family of the deceased person fail to find it in their possessions following their death;
sometimes, when lawyers apply for probate (which requires posting the original will to the High Court), the letter is lost in the post (we walk all our probate applications to the court in person to ensure that this never happens!); or
occasionally, the original gets lost at the lawyer’s office where they have been holding it (although this is rare because usually, lawyers have a very disciplined deeds system in place).

Whichever way the will becomes lost, the High Court cannot produce probate in the usual way unless the original will is produced to them, so you have a Prickly Probate Problem.

If the original will has been lost and no copy of it can be found after a thorough search, then an application for probate cannot be made and the correct application to make would be an application for letters of administration (which does very much the same thing as probate but covers the situation where there is no will).

Oftentimes, however, the reason that you know the will is lost is because you have a copy (or sometimes a draft of it), but you cannot find the original. If this is the case, it is sometimes possible to make an application for probate of the lost will in which the court accepts the copy of the will as if it were the original.

PROBATE OF A LOST WILL – DIFFERENCES FROM A NORMAL PROBATE APPLICATION

The main differences with an application for probate of a lost will are:

that probate is granted on the copy of the will (not the original);
that the grant of probate is limited until a more authentic copy (or indeed the original, if it ever turns up) is used to apply for probate;
for all probate applications, the executor of the will is required to sign an affidavit for the court, but in these applications, there also needs to be a second affidavit from someone supporting the application.

The second affidavit supporting the application and what it needs to include shows the heart of the differences in this type of application. There are a number of extra facts that need to be proved to the court before they will grant the probate:

that the original will existed;
that it was signed correctly so as to be a valid will in New Zealand;
that it was not revoked;
that it was accidentally lost or destroyed; and
that the contents of that original will are contained in the copy (or draft).

In some circumstances, these extra facts are quite easy to prove.

If, for example, the will was held with the lawyers of the deceased and they made a probate application, but the original will got lost in the post on its way to the High Court, then the lawyers for the deceased can sign an affidavit explaining what has happened and attaching the copy of the will which they took from their file. In that situation, it is clear that the original will existed (the lawyers will swear to this in their affidavit as they saw it) and that it was signed correctly, not revoked and accidentally lost in the post. Lawyers almost always take a copy of a will for their file, so they can swear in their affidavit with confidence that the copy on their file represents the contents of the original will that was lost. This fact scenario represents one of the most simple versions of this application.

In other circumstances, proving all the facts that the court will need is more difficult.

An example of this is the case where the lawyers cannot find the original signed will in their deeds system and they only have a draft of the will (not a copy of the signed original) in their file. Unless somebody at the firm can remember signing the will with the client and placing the fully signed will into the deeds system and the deeds records show that the will was not taken out of the deeds system and given to the person who made the will, then it is not possible to prove everything that the court needs to know.

THE PRESUMPTION OF DESTRUCTION ANIMO REVOCANDI

A tricky rule in this area of the law is the presumption of destruction amino revocandi. A presumption is something that the court will assume unless you can prove to them otherwise. In this case, the presumption is that if the last place that the original will was known to be was in the possession of the person who wrote it and after their death, the original will cannot be found, then the court presumes that the person who wrote the will destroyed the will with the intention to revoke it unless it can be proved that this is not the case.

It is quite difficult to prove that the person who wrote the will did not destroy the will in order to revoke it once they have died. Some examples of situations where it was successfully proved that the deceased did not destroy the will were cases where the deceased had talked to friends and family to say they were happy with what their current will contained soon before their death or cases where the deceased’s house burned down (or a similar accidental destructive event occurred), but there was proof that the original will was safely in their papers before the fire.

This presumption is one of the reasons why we recommend that you leave your original will with your lawyers for safekeeping in their deeds system. Even if the lawyers lose the original will, they generally have good enough systems in place to ensure that they can still receive a grant of probate of a copy of that will so that your wishes are still followed and you don’t end up in a situation where, despite your best efforts, you are treated as if you do not have a will at all.

FOR MORE INFORMATION

If you have a deceased friend or family member and their original will cannot be found, get in touch. You still have plenty of options and we can work through with you which one will achieve the best outcome for the estate and make whatever application is required to get the estate sorted.

If you are a lawyer struggling with one of these applications for a client, you might consider using us to complete the application for you. We run a service for other lawyers preparing these applications on your behalf. Because we do so many of them, we can complete them faster (and usually cheaper) than you can and it saves you the unchargeable time coming up to speed with a tricky application which you will rarely be required to make. Your client need not know we exist; they just receive an efficient and painless grant and attribute that success to you!

For more information, please contact Jenny Lowe. Jenny is one of few legal specialists in New Zealand for probate and letters of administration applications, covering both the simple and the complex. She is particularly skilled in applications where the deceased lived and died overseas, but the estate has assets in New Zealand. Please contact Jenny Lowe by email at jenny.lowe@nzprobatesandreseals.com.